Citation Nr: 1334205
Decision Date: 10/28/13 Archive Date: 11/06/13
DOCKET NO. 08-27 716 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for left lower extremity shin splints/stress fracture.
2. Entitlement to service connection for right lower extremity shin splints/stress fracture.
ATTORNEY FOR THE BOARD
A-L Evans, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1990 to July 1990, with additional reserve service.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
This case was previously before the Board in March 2011, April 2012 and May 2013. In its May 2013 decision, the Board remanded the issues of entitlement to service connection for a left lower extremity condition, a right lower extremity condition and pseudofolliculitis barbae for additional development of the record. Subsequently, in an August 2013 rating decision, the RO granted service connection for a pseudofolliculitis barbae. As the issue on appeal was granted, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).
FINDINGS OF FACT
1. The record does not contain clear and unmistakable evidence that the Veteran's shin splints/stress fractures pre-existed service.
2. During the course of the appeal, the Veteran was diagnosed with shin splints that were linked with service.
CONCLUSIONS OF LAW
1. Resolving all doubt in the Veteran's favor, the criteria to establish service connection for left lower extremity shin splints/stress fracture have been met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).
2. Resolving all doubt in the Veteran's favor, the criteria to establish service connection for right lower extremity shin splints/stress fracture have been met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In this decision, the Board grants service connection for shin splints/stress fracture of the left and right leg. As this represents a grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding this issue.
Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111.
If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service under 38 U.S.C.A. § 1111. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Id.
The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Service treatment records document multiple complaints and treatments for bilateral shin splints and stress fractures. A March 1990 medical note reflects that the Veteran had bilateral shin splints. A March 1990 x-ray reflects bilateral stress fractures. X-ray results a few weeks later in March 1990 show a progressively healing stress fracture of the right tibia and the examiner noted bilateral shin splints. In April 1990, treatment records show that the Veteran was assessed with bilateral shin splints and a resolving stress fracture in both his right and left legs. May 1990 service treatment records show a resolving left tibia stress fracture.
Post service private treatment records dated in January 2006 revealed that the Veteran reported pain in his anterior shins for approximately the last 4 months. The Veteran stated that he had suffered from mildly "dull pain for five to six years ever since shin splints in military." The private medical doctor assessed the Veteran with shin splints versus recurrent stress fractures.
The Veteran was afforded a VA examination in August 2011. The Veteran complained of aching in his shins which occurred with prolonged walking or running. He stated that he suffered from intermittent flare-ups which occurred a few times a month and lasted for a day. The examiner diagnosed the Veteran with bilateral tibial stress fractures, resolved, without residuals abnormalities; left shin splints, intermittent with normal left shin examination; right shin splints, intermittent, with tenderness adjacent to the right tibia. The examiner noted a review of the claims file and stated that there was no reason to suspect that the Veteran's current condition was related to his military service because the Veteran was not in the physical training now that he was in during active duty.
In a May 2013 VA medical opinion, the examiner noted that there were no current residuals from the in-service stress fractures. However, the examiner opined that the shin splints diagnosed during the course of the claim were most likely a continuation or maturation of the shin splints noted in service.
Regarding the Veteran's left lower extremity shin splints/stress fracture, the Board finds that service connection is warranted. First, the evidence reflects that in January 2006, during the pendency of the claim, Veteran was diagnosed with shin splints. McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Second, the Veteran's service treatment records show treatment for left leg shin splints and stress fracture in service. Although a May 1990 service treatment record shows that the Veteran reported having a left stress fracture in the late 1980's, the Veteran's January 1990 service entrance exam was silent for any shin or leg problems.
Additionally, the competent evidence of record shows a relationship between the Veteran's current left leg shin splint condition and service. The Board notes the negative nexus opinion provided by the August 2011 VA examiner. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the May 2013 medical examiner opined that the Veteran's shin splints were likely a continuation of the shin splints/stress fractures noted in service. The examiner reviewed the claims file and the Veteran's history. The rationale for the opinion provided was based on objective evidence. Thus, the evidence is in equipoise. The Board finds that the Veteran's in-service shin splints and stress fractures are attributable to his current left leg shin splints/stress fracture disability diagnosed during the course of the appeal.
Regarding the Veteran's right lower extremity shin splints/stress fractures, the Board finds that the Veteran did not have a right lower extremity stress fracture prior to entering the military. Because this condition was not noted at entrance, the evidence of record must clearly and unmistakably show that the disability existed prior to service. The Veteran's January 1990 Report of Medical Examination for Enlistment and Report of Medical History for Enlistment were both silent for any shin or leg problems; the Report of Medical examination had "normal" checked for lower extremities and the Report of Medical History had "no" checked for cramps in your legs. A February 1990 medical health note shows that the Veteran reported that he had a stress fracture in his right tibia in 1986, which was treated with a cast. However, a February 1990 x-ray revealed that the Veteran's right tibia was within normal limits. The Veteran's assertion alone is not clear and unmistakable evidence that his right tibia stress fracture pre-existed service. Since there is no clear and unmistakable evidence that the Veteran's right leg stress fracture pre-existed service, the presumption of soundness has not been rebutted, and the claim is one for service connection. See Wagner, 370 F. 3d 1089.
The evidence of record shows that the Veteran has a current diagnosis of shin splints. In January 2006, a private medical doctor diagnosed the Veteran with shin splints versus recurrent stress fractures and the May 2013 examiner noted that the Veteran suffered from current residuals of pain from the in-service shin splints in the right leg. Next, service treatment records reflect complaints and treatment for this disorder while in service. Finally, the May 2013 medical examiner opined that the Veteran's shin splints were a likely continuation of the shin splints/stress fractures noted in service. Accordingly, after resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection have been met.
ORDER
Entitlement to service connection for left lower extremity shin splints/stress fracture is granted.
Entitlement to service connection for right lower extremity shin splints/stress fracture is granted.
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs